Nov. 25



TEXAS:

Texas court gags news coverage of mass murders


The district court in this East Texas town (Palestine) has approved a defense attorney's gag order to restrict news coverage of the recent campsite murders of six victims, including evidence and testimony presented in pretrial proceedings.

The prior-restraint order forbids the news media from reporting "in detail" evidence presented to the court by police, prosecutors or witnesses "other than reporting that certain persons testified" at pretrial hearings.

It also prohibits participants in the case - the parties, lawyers, law enforcement officials, and witnesses - from talking to the news media on the grounds such a restriction is necessary to protect defendant William Hudson's right to a fair trial.

The gag order was approved Friday without comment by a judge, the same day it was submitted by Hudson's court-appointed attorney, Stephen Evans of Palestine.

Surprisingly, news outlets received no advance notice of the motion or the court's quickie decision to approve it.

Normally, before a court restricts the news media from publishing information, a hearing is conducted before a judge to allow objection to whether a gag order is necessary or even constitutional under the First Amendment right to publish news.

The U.S. Supreme Court, in a landmark 1976 decision in a widely-publicized Nebraska murder case, overturned a judge's gag order, declaring the government has a heavy burden to prove it is necessary to gag the news media from reporting lawfully obtained news no matter what. That ruling characterized a gag order as a last resort, not a first option.

The 6 victims of the campsite carnage at Tennessee Colony just northwest of Palestine were murdered only 10 days ago. Capital murder charges were filed promptly against Hudson, 33, who lived adjacent to the murder scene, and was identified by the lone survivor.

Hudson is being held without bail in the Anderson County Jail, awaiting the outcome of a grand jury hearing on the case. He faces the death penalty or life in prison without chance of parole if convicted.

The court gag order strictly bans the media from taking photographs or video of defendant William Mitchell Hudson while he is being transported to court, and rules out any photography, televising or radio broadcasting from inside the courthouse.

The motion further directs the case judge to hold all pretrial hearings in the judge's private chambers, "outside the presence and hearing of the public and the press."

Defense attorney Evans said in the gag order motion his client "intends to produce evidence during pretrial hearings which might impair the possibility of a fair and unprejudiced jury."

(source: Dalton Daily Citizen)






VIRGINIA:

Harvey family killer to remain on death row after judges deny latest appeal


The man who killed the Harvey family in their South Richmond home nearly 10 years ago will remain on Virginia???s death row. The Federal 4th Circuit Court of Appeals has denied killer Ricky Gray???s most recent appeal of his conviction and death sentence. Gray filed the appeal before a a 3-judge panel in September.

In explaining the appeal's denial, Judge Diaz wrote:

Ricky Jovan Gray appeals the district court's denial of his petition for a writ of habeas corpus. His appeal presents 2 questions. First, whether the Supreme Court of Virginia, in resolving factual disputes regarding an ineffective-assistance-of-counsel claim without an evidentiary hearing, made an "unreasonable determination of the facts" under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. # 2254(d)(2).

Because we find that the state court did not ignore Gray???s evidence or otherwise reversibly err in resolving factual disputes on the record, we reject this 1st challenge.

The 2nd question is whether Gray may belatedly raise in the district court a claim of ineffective assistance of trial counsel under the Supreme Court's decision in Martinez v. Ryan, 132 S. Ct. 1309 (2012).

We find that the claim Gray seeks to raise was presented to, and decided by, the state court. Therefore, it is not subject to de novo review in the district court under Martinez.

Accordingly, we affirm the judgment of the district court.

Senior Circuit Judge Davis disagreed, in part, with the decision to deny Gray's appeal:

I agree with my friends in the majority that Ricky Jovan Gray exhausted his claim that trial counsel were constitutionally ineffective in failing to present evidence during the penalty phase of his trial that he was voluntarily intoxicated during the commission of the crimes.

Furthermore, because a "reasonable fact-finder . . . could have found the facts necessary to support [Gray's] claim from the evidence presented to the state court[]," Winston v. Kelly, 592 F.3d 535, 551 (4th Cir. 2010), I agree with the majority that the district court properly dismissed Gray's Martinez claim.

But I disagree, respectfully, with the majority's determination that the Supreme Court of Virginia's resolution of disputed issues of fact, based on conflicting and partially unaddressed sworn affidavits, without an evidentiary hearing, did not amount to an unreasonable determination of the facts under 28 U.S.C. # 2254(d)(2).

I therefore concur in part and dissent in part.

In his habeas petition to the Supreme Court of Virginia, Gray presented several claims of ineffective assistance of counsel.

He grounded one such claim in his trial counsel's alleged failure to undertake a reasonable investigation into the circumstances surrounding his confession. Gray alleged that, during the course of his January 7, 2006 police interrogation, he had repeatedly requested an attorney and a phone call, but the police denied both requests, continued the interrogation, and ultimately obtained his written confession.

Gray also asserted that he had told the police that he could not remember many details of the crimes because of his drug use during the day in question.

Gray claimed that the police had responded by showing him the statement of one of his accomplices, Ray Dandridge, and by helping Gray fashion his own confession in reliance on many of the details included in Dandridge's statement.

Importantly, Gray alleged in his habeas petition that he had expressly informed his trial counsel of the details surrounding his interrogation and confession during a February 10, 2006 meeting.

Even though Gray had relayed this information, his trial counsel allegedly failed to conduct a reasonable investigation into these matters.

Had his trial counsel adequately investigated the circumstances surrounding Gray's interrogation and confession, Gray asserted, his trial counsel could have moved to suppress his confession or used the results of the investigation to impeach the testimony of Detective Howard Peterman during trial.

Gray supported his ineffective assistance of counsel claim and his recollection of the January 7, 2006 police interrogation and confession with the affidavit of Melvin B. Knight. Knight was an investigator with the Office of the Capital Defender of the Central Region of Virginia and was tasked with assisting Gray's trial counsel in preparing Gray's defense.

Prior to his employment with the Office of the Capital Defender, Knight was a law enforcement officer with the City of Richmond Police Department for more than 25 years.

In his affidavit, Knight recounted his February 10, 2006 interview with Gray and explained that Gray had expressly stated that he had asked for an attorney and a phone call during his questioning by police. Knight also remembered Gray mentioning that he could not remember many details of the crimes because he had been high on a combination of marijuana, ecstasy, and PCP at the time the crimes were committed.

Gray also indicated, according to Knight, that he had shared this information with the police. Gray then told Knight that, because he had been unable to remember many details of the crimes during his interrogation, the police had assisted Gray in crafting a written statement based upon the statement prepared by Dandridge. In short, a plausibly credible witness offered sworn facts more than trivially corroborative of Gray's allegations supporting a claim of ineffective assistance.

The crime

On New Year's Day 2006, Bryan and Kathryn Harvey and their 2 young daughters were bound, beaten and stabbed inside the basement of their South Richmond home. The home was also set on fire. Gray confessed his role in murders to police. A jury later convicted Gray and sentenced him to death. An execution date could not be set until Gray exhausted all his appeal possibilities.

(source: WTVR news)






FLORIDA:

Could student accused of killing parents face death penalty?


There are only 5 women on Florida's death row. Could 21-year-old Nicole Nachtman be next?

Nachtman, a student at Florida State University, is charged with killing her parents in August.

Before Nachtman goes to trial, prosecutors must decide whether they will seek the death penalty. It's not a simple decision.

Defense Attorney Rick Terrana has handled 30 death penalty cases in his legal career. The most notorious was the case of Adam Davis, who killed his girlfriend's mother by injecting her with bleach and stabbing her.

He says the decision to seek the death penalty in any case isn't left up to 1 person. The decision is made by a committee.

The committee includes Hillsborough State Attorney Mark Ober, his chief assistant and the felony chiefs of each division.

Terrana said it's a life and death decision that needs a lot of voices.

"You want nothing less than a committee deciding this. You certainly don't want 1 person making this decision unilaterally on whether someone lives or dies. Imagine if that person had a bad day at home or in the office," said Terrana.

Investigators said Nachtman killed her step dad first, and then waited until her mother returned home the next day and killed her too.

Terrana said the committee will weigh whether the murders were "especially heinous, atrocious or cruel" and whether they were calculated or premeditated.

The Public Defender's Office represents Nachtman. They will weigh in on the decision as well.

"I'm sure they are diving into the mental state of this defendant as deep as anyone could ever look into that," said Terrana.

The committee doesn't vote, but rather comes to a consensus on whether the case is death-penalty worthy. It's a decision that Terrana said should never be rushed.

Nachtman is due back in court on December 10th. Prosecutors are expected to announce their decision then.

(source: Fox News)






OHIO:

Eluding death: Ohio prosecutors charge far fewer capital murder cases


Prosecutors across Ohio are changing the way they charge suspected killers. They are indicting far fewer with the death penalty and pushing more sentences of life in prison without parole.

The number of capital murder indictments filed across the state since 2010 has plummeted by 77 %, as just 19 have been brought this year.

During the same time period, the number of inmates sentenced to life without parole has spiked 92 %, according to a Plain Dealer examination of state prison records and other public documents.

The Ohio numbers mirror a national trend involving the death penalty. Legal experts cited the high costs of taking a capital case to trial. They also said decades of appeals make the death penalty extremely burdensome on the criminal justice system and traumatic for victims' families.

Many inmates who will spend their lives behind bars are like Robert Clark, 30, who robbed and killed an elderly couple outside their rural Ohio home in January. Others are like Julian Whitaker, 35, who killed a 5-year-old boy by slashing his throat in the child's Cleveland home in June 2011.

As the death penalty in Ohio sits stalled in a moratorium over the drugs used in executions, the emerging trends of how prosecutors handle aggravated murder cases offer insight into the way justice is meted out in Ohio courtrooms.

"We simply are not charging people with the death penalty like we once did,'' said Michael Benza, a senior instructor of law at the Case Western Reserve University School of Law.

Ohio has 141 inmates on death row, with the most, 25, from Hamilton County, in Southwest Ohio and home to Cincinnati. Cuyahoga County has 22, and records show it has sent far fewer inmates to death row in recent years.

Since late 2012, when Prosecutor Timothy J. McGinty took office, 5 men have been indicted on death-penalty charges. But there were 75 cases that met the criteria for the penalty, according to prosecutors' records. That means McGinty's office pushed the death penalty in less than 7 % of the possible cases.

The 5 indicted are:

* Hernandez Warren, 60, who was sentenced in May 2014 to life in prison for raping and killing 14-year-old Gloria Pointer in 1984. He pleaded guilty in a deal with prosecutors and will get his 1st chance of parole in 30 years.

* Michael Madison, 38, who is accused of killing 3 women in 2013 in East Cleveland. His trial is pending.

* Ronald Hillman, 47, who was sentenced to life in prison without parole for the August 2014 rape and slaying of Michaela Diemer. He pleaded guilty and was sentenced in August.

* James McAlpine, 32, who was sentenced to life in prison in May 2014 for killing 2 people years earlier. His 1st chance of parole is in 34 years.

* Douglas Shine, 20, who is accused of killing 3 men at a Warrensville Heights' barbershop in February. His case is pending.

Compare McGinty's record to his predecessor, Bill Mason: From 2009 through much of 2012, Mason's office indicted 89 death-penalty cases out of a possible 114 that met the requirements for the charge, or 78 %, according to prosecutors' records.

McGinty told The Plain Dealer that he believes in the death penalty when going after the worst of the worst.

"The death penalty used in the correct case - a case that leaves no doubt - is, I believe, a strong deterrent to crime,'' McGinty said. "But the endless appeals process has undermined the death penalty.

"In every case, I have to ask, 'Are we going to survive this?' We have to take a case to a judge and jury and then face 25 years of appeals. Is it fair to families of victims? Is it fair putting them through a quarter century of appeals?''

Since taking office, McGinty has used an internal office review committee to examine whether the death penalty is justified in each case brought to his office.

Specifically, the panel looks at whether the crime fits the letter and spirit of the law, whether a reasonable jury would return a guilty verdict and whether it would be worth the resources to spend decades fighting the appeals. Based on the panel's recommendation and the family's wishes, McGinty makes the decision.

Several attempts to reach Mason were unsuccessful. But in 2008, his then-office spokesman summed up Mason's policy in an interview with the Associated Press: "If a defendant is eligible for the death penalty, the defendant is charged with the death penalty.''

Under state law, crimes that can qualify for death-penalty charges include killing a person while committing another crime, such as rape, robbery or burglary and if the slaying involves a police officer.

Emerging trends

Life in prison without parole became an option to jurors in death-penalty cases in 1995. Ten years later, state lawmakers made it possible for prosecutors to seek the life-without-parole sentence in other murder cases.

Years later, the trends have become quite clear.

* Death-penalty indictments dropped 77 %, going from 81 in 2010 to 19 this year, according to records from the Ohio Public Defender's Office.

* The number of felons convicted of murder and sentenced to life in prison without parole has jumped 92 %, going from 283 in January 2010 to 544 in October, according to state prison records. The inmates make up about 1 % of the 50,370 inmates in the system.

* It costs $22,836 a year to house an inmate in Ohio. Since there are 544 serving sentences of life without parole, that means the total dollar amount for the group is $12.4 million a year. Because many are under the age of 35, the costs will grow for years to come.

"Most prosecutors have become much more circumspect about death-penalty cases.''

But counties and the state also bear major costs in death-penalty trials. The trials can cost hundreds of thousands of dollars prosecuting and defending complex cases at trial - and much more during the appeals process.

Ohioans to Stop Executions cited a study by WHIO-TV in Dayton that found it costs $3 million to execute a person in Ohio - from arrest to death. By comparison, the television station found, it costs $1 million to keep an inmate in prison for the rest of his or her life.

A study of the death-sentence costs in Maryland found similar dollar amounts, according to the Death Penalty Information Center in Washington, D.C.

Meanwhile, prosecutors across the country have filed far fewer indictments seeking the death penalty in recent years, said Robert Dunham, the executive director of the Death Penalty Information Center.

He cited costs, the strain on victims' families and the waning public sentiment of the death sentence.

"Most prosecutors have become much more circumspect about death-penalty cases,'' Dunham said. "The single most likely outcome of a capital case after a defendant has been sentenced to death is not that he will be executed but that the conviction or sentence will be overturned.''

The Death Penalty Information Center's statistics show that the number of inmates sentenced to death nationally has dropped 35 percent since 2010, when judges ordered 114 to be executed. Last year, the number fell to 73.

Also, the number of inmates executed has dropped by nearly 50 % since 2010, when 52 were put to death. So far this year, 27 have died, according to the center's statistics.

'A good thing'

For years, Ohio Public Defender Tim Young has pushed the sentence of life without parole.

"It is a good thing as an alternative to the death penalty for a myriad of reasons,'' Young said. "There's closure for the family, and it is cheaper to put a person in prison for life than litigating the case for 15 to 20 years.

"At the end of the day, it's a good thing for our society.''

Others disagree.

"Yes, life without parole is the lesser of 2 evils, but we have to be careful of applauding these sentences,'' said Ashley Nellis, the senior researcher at the Sentencing Project, a Washington, D.C., group that seeks criminal justice reform.

"It would be wrong to simply toss them away and forget about them.''

Nellis said she is not opposed to sending the most violent convicts to prison for life. But she believes that their cases should be reviewed.

"These people should not be kicked to the curb,'' she said. "Life in prison is a death sentence, without the execution.''

If there is enough evidence that shows the inmates have grown and matured behind bars, Nellis said, then they should receive consideration before the parole board or judge.

Stephen JohnsonGrove, the deputy director of the Ohio Justice and Policy Center, agreed.

"After a certain point, we're not gaining any safety or moral vindication by keeping people in prison,'' said JohnsonGrove, whose agency is a nonprofit law office in Cincinnati that focuses on criminal justice reform. "By and large, life without parole is over-used.''

A severe sentence

Some critics, however, believe the death penalty is the best punishment for a heinous killer. Others say life in prison without parole is even more severe.

"It is true that they get three hots, a cot and cable television,'' McGinty said. "But prison is a godawful place. There's an argument that life without parole is a far greater punishment than the death penalty. Death is the easy way out.''

Robert Clark avoided the death penalty.

Prosecutors in rural Coshocton County, which is about 2 hours south of Cleveland, indicted Clark, 30, on death-penalty charges for the brutal attack on Doyle and Lillian Chumney of Strasburg in January. Doyle Chumney was 88; his wife was 79.

Clark broke into their home, robbed the couple, shot them and then torched their car with them inside. As the case was set to go to trial in August, Clark entered a plea agreement that spared him the death house.

Julian Whitaker also was spared. He admitted in court that he slashed the neck of 5-year-old Larvelle Smith in June 2011 in what Whitaker said was a drug-fueled rage. After Whitaker took a plea deal, a judge sentenced him to life in prison without parole.

"We have to be extremely selective because of the ever-changing realities of the situation,'' McGinty said. "We can only go after the worst of the worst cases that have the highest degree of evidence.''

(source: cleveland.com)






INDIANA:

Prosecutors not ruling out death penalty for defendants in Blackburn murder


The 2 men facing murder charges in the slaying of an Indianapolis pastor's wife have said little upon facing a judge for the 1st time since their arrest.

A Marion County judge entered not guilty pleas for 18-year-old Larry Taylor Jr. and 21-year-old Jalen Watson during a hearing on Tuesday morning.

A decision is yet to be made whether the death penalty will be sought against the 2 men. On Monday, Marion County Prosecutor Terry Curry said his office will review evidence in the coming weeks and meet with the family of Amanda Blackburn before making a death penalty decision.

The Associated Press reports that, the two men quietly answered the judge's questions about whether they understood the charges, but didn't say anything about the accusations that they broke into the home of 28-year-old Blackburn.

Indianapolis police announced Monday the arrest of Mr. Taylor on murder charges in Blackburn's killing. Later that day, police announced they had taken 2 additional men into custody in relation to a string of robberies in the area where Ms. Blackburn was killed.

According to court records, Taylor was charged with 3 counts of murder as well as burglary, theft, auto theft, and carrying a handgun without a license. Mr. Watson was charged with 2 counts of murder as well as burglary, theft, robbery resulting in serious bodily injury, and auto theft.

The arrests came nearly 2 weeks after Blackburn's husband, Pastor Davey Blackburn, found his wife critically injured after being shot in the head inside her house on Nov. 10 and died the following day. She was 13 weeks pregnant and the baby did not survive. Mr. Curry says he hasn't determined yet whether to pursue charges related to the death of the unborn child.

The Blackburns, moved to Indianapolis from South Carolina in 2012 and founded Resonate Church, an independent Christian church. Mr. Blackburn released a statement Monday after receiving news of the arrests via the church Facebook page:

"Though it does not undo the pain we are feeling, I was extremely relieved toget the news of the arrest made last night of Amanda's killer. The investigators have assured me they have a solidly-built case to ensurejustice is levied and the process is expedited. The family and I couldn't be more thankful for the level of compassion and professionalism the IMPD and investigators have shown us through the last couple of weeks. My hopeis for 3 things in the weeks and months to come:

(1) That the court system would have wisdom on how to prosecute thisman, so that no one else endures the pain Amanda and our family havehad to endure because of his actions.

(2) That through all of this and although there will be great consequences for his actions, he would become truly sorry for what he has done and would even begin to experience the life-transforming power of the Graceand Mercy of Jesus Christ.

(3) That Jesus would give me and our family a heart of forgiveness.

Though everything inside of me wants to hate, be angry, and slip into despair I choose the route of forgiveness, grace and hope. If there is one thing I've learned from Amanda in the 10 years we were together, it's this: Choosing to let my emotions drive my decisions is recipe for a hopeless and fruitless life. Today I am deciding to love, not hate. Today I am deciding to extend forgiveness, not bitterness. Today I am deciding to hope, not despair. By Jesus' power at work within us, the best is STILL yet to come. Even when I don't see it, I believe it to be true.

(source: Christian Science Monitor)

**************

No, Amanda Blackburn's accused killers aren't 'animals'


The legal analyst for FOX News grew more agitated the longer she spoke Tuesday night about a murder case that has horrified Indy for more than 2 weeks.

"They got rid of the electric chair in Indiana in 1995," Katie Phang, a Miami-based trial lawyer and regular guest on Greta Van Susteren's talk show, said. "And I think frankly they should bring it back for these 3 animals that were involved in the murder of Amanda Blackburn."

Let's think about that comment, echoed by others in our city. Not to debate the ethics of the death penalty, or to argue over whether a particular means of execution is more appropriate than another (Indiana uses lethal injection).

And not about whether an officer of the court should have publicly convicted suspects immediately after their arrest. (For the record, only 2 men, not 3, have been charged in Blackburn's murder thus far).

No, I want to focus on the use of the word "animals" to describe Amanda's accused killers.

It's the wrong word, and, more important, it's one that sends the wrong message.

Hear me out, please. I am in no way defending those accused of this barbaric crime. If convicted, these men should never taste another day of freedom again. And if Marion County Prosecutor Terry Curry does decide to pursue the death penalty, I won't object.

But I do object to using words such as "animal" to dehumanize the accused - not for their sake. But for our own.

The fact is these young men are products of our community. They grew in our midst from the innocent children we all are at birth to become the dangerous predators they appear to be today. They attended our schools, lived in our neighborhoods, mingled with the rest of us on our streets.

As ugly as it is think about: Our city, parts of our culture, helped to mold them into criminals so wanton that they invaded homes, terrorized the innocent, and, in a last despicable act, apparently murdered a young woman and her unborn child.

Those facts should prompt us to ask why this happened in our city? Why has Indy suffered through another year marred by rampant violence? Why are we losing so many of our children to criminal depravity? Why have we failed as a community to successfully intervene in so many wasted lives?

An earlier conversation about such questions lingers in my mind. Jay Height, who for 20 years has poured himself into trying to rescue thousands of young men and women from paths to destruction on Indy'
Eastside, reminded me of another crime that shocked Indy at the time.

"Remember the 4th of July shooting in Downtown a couple of years ago? The shooter was nicknamed "Monster," Height said this spring. "These are our children. Monster is our kid. We need to understand that every kid is going to be mentored by somebody. The question is by who?"

Compare the idea of "Monster is our kid" to that of execute "these 3 animals."

One approach speaks to collective ownership - not of the crime, of course, but of the opportunity and the obligation to work together to prevent future horrific acts. To step in as neighbors, coaches, tutors and mentors when families fail; to invest generously in organizations like Height's Shepherd Community Center; to insist as citizens and voters that elected leaders reform the justice system.

The other approach speaks of distancing ourselves from the sicknesses that give rise to the violence that plagues our city day after day, year after year.

Ownership is hard and messy; distancing is easier and cleaner. But we can't distance ourselves. This is our home, our beloved city. And we must fight for it together.

So, by all means, if convicted, let's punish Amanda Blackburn's killers severely. They deserve it, and we must demand it.

But our work doesn't come close to stopping there.

(source: Commentary, Tim Swarens, Indianapolis Star)

_______________________________________________
A service courtesy of Washburn University School of Law www.washburnlaw.edu

DeathPenalty mailing list
DeathPenalty@lists.washlaw.edu
http://lists.washlaw.edu/mailman/listinfo/deathpenalty
Unsubscribe: http://lists.washlaw.edu/mailman/options/deathpenalty

Reply via email to